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Tsarnaev judge declines to tell jury that if they don’t go unanimous on death he’s obliged to impose life sentence; no mistrial
MR. BRUCK: If I may?
THE COURT: Please.
MR. BRUCK: If it please the Court, we would first like to object to the Court's refusal to include in its instructions and the verdict slip our Request No. 3, which is an instruction regarding the effect of the jury's inability to reach a unanimous decision.
The instruction as requested and as refused by the Court is as follows: "If the jury is unable to reach a unanimous decision in favor of either a death sentence or a life sentence, I will impose a sentence of life imprisonment without possibility of release upon the defendant. That will conclude the case. At the sentencing stage of the case, the inability of the jury to agree on the sentence to be imposed does not require that any part of the case be retried. It also does not affect the guilty verdicts that you have previously rendered."
We argued this issue yesterday. As the Court is aware, I simply want to note at this time that, notwithstanding the authority of the United States versus Jones, we think that under the extraordinary circumstances of this case, any misapprehension, which is very likely, that the jury will labor under that a non-unanimous -- or failure to achieve unanimity would require a mistrial, and a retrial would be extraordinarily prejudicial because of the nature of this particular case and what it would signify to put the victims and the survivors and the entire community through this entire case again.
Of course, everybody but the jury now knows that that's not what happens, and we think that this is a situation which is fraught with the risk of coercion. So understanding that there is a -- that there is, at this time, authority supporting the Court's decision, we note that it is a practice which is very commonly -- the practice of informing the jury, of telling them the truth about the results of a failure to agree, is extremely widespread in the federal courts, even under cases where the necessity, we believe -- or where the reasons for giving a full and complete and accurate instruction are nowhere near so compelling as here.
THE COURT: All right. As to that, I've made my reasons clear on the lobby conference record. I don't think it's necessary to repeat them. I adhere to those views.
MR. BRUCK: Very well.
In the alternative, and reserving our rights under that request, we would request that the Court give the instruction contained in Sand's Modern Federal Jury Instructions, Instruction No. 9A-20, which, in pertinent part -- I've handed the entire instruction up to the Court yesterday at the lobby conference, but the pertinent part for purposes of the record reads as follows: "If, after engaging in the balancing process I have described to you, all 12 members of the jury do not unanimously find beyond a reasonable doubt that the defendant should be sentenced to death, then you may not impose the death penalty. In that event, Congress has provided that life imprisonment without any possibility of release is the only alternative sentence available. If the jury reaches this result, you should do so by unanimous vote and indicate your decision in Section" blank "of the special verdict form."
So we, as a follow-up, reserving our rights under Request No. 3, make that request as well and object to the Court's having declined to give it at the lobby conference yesterday and today.
THE COURT: Okay. Again, my reasons were stated on the record yesterday, and I adhere to them.
MR. BRUCK: Next, we submitted a proposed instruction following the language from Sand's Modern Jury Instructions that on the issue of the appropriateness of the death penalty, the reasonable doubt standard should apply. That is to say that the jury should only impose the death penalty if it found beyond reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances sufficiently so as to justify the death penalty. That is the language from Judge Sand. That was the language of our request. The Court removed the requirement of beyond a reasonable doubt from that instruction, and we wish to preserve our objection to having done so.
THE COURT: As you know, the ruling was consistent with circuit law.
MR. BRUCK: We also except to the Court's refusal to include as a mitigating factor that the defendant would be sentenced to a sentence of life imprisonment without possibility of release, if the death penalty is not imposed, we understand that the jury has been informed of that fact, but we think that that is a mitigating factor or a circumstance weighing against imposition of the death penalty. Mitigating factor within the meaning of the Federal Death Penalty Act and the Eighth Amendment, which should have been included on the list of mitigating factors.
THE COURT: Okay.
MR. BRUCK: I went to check with counsel to make sure I haven't missed anything.
(Counsel confer off the record.)
MR. BRUCK: That's it. Thank you.
THE COURT: Okay. Does the government have anything?
MR. WEINREB: No, your Honor.
THE COURT: All right. Let's get the jury back in.